Estate of (Decd) Blanche Elizabeth Brierley Kennedy v Valuer-General

[2023] QLC 8

LAND COURT OF QUEENSLAND

CITATION:

Estate of (Decd) Blanche Elizabeth Brierley Kennedy & Anor v Valuer-General [2023] QLC 8

PARTIES:

Estate of (Decd) Blanche Elizabeth Brierley Kennedy
(applicant)

v

Valuer-General
(respondent)

FILE NOs:

LVA121-22
LVA123-22
LVA125-22

PARTIES:

Estate of (Decd) Blanche Elizabeth Brierley Kennedy & Duncan Alexander Robert Kennedy
(applicant)

v

Valuer-General
(respondent)

FILE NOs:

LVA122-22
LVA124-22

PROCEEDING:

Jurisdiction – s 164(6) Land Valuation Act 2010.

DELIVERED ON:

30 May 2023

DELIVERED AT:

Brisbane

HEARD ON:

Heard on the Papers

HEARD AT:

Heard on the Papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

It is declared that the requisition notice issued to the applicants on 30 August 2022 is invalid. 1.    

The Court has jurisdiction to hear and determine each of the appeals.2.    

CATCHWORDS:

PRACTICE AND PROCEDURE – Land Valuation Act 2010 – where valuation notices defective – where the registrar must give notice stating the way the notice does not satisfy the valuation appeal requirements – where requisition must state appellant must fix defect by filing an answer within 28 days – where time frame not stated – defect not fixed within 28 days – whether requisition invalid – where the Court declared requisition invalid – where jurisdiction found to lie.

Land Valuation Act 2010 s 164

Schirmer v Valuer-General (1974) 1 QCLR 144, cited

APPEARANCES:

Not applicable

Background

1. Notices of appeal for each site were filed on 16 August 2022 in response to objection decisions issued by the Valuer-General dated 4 July 2022. On 30 August 2022 a letter was forwarded by post from the Land Court registry to the Estate of Blanche Elizabeth Brierley Kennedy (the Estate) and Mr Duncan Alexander Robert Kennedy (Mr Kennedy) advising of certain defects with the appeal notices; and requesting that those defects be rectified.

1. By letter posted on or about 11 September 2022, Mr Kennedy replied to the letter from the registry. This letter did not address any of the defects associated with the appeal notices. By letter dated 17 October 2022 the registry advised Mr Kennedy that the answers to the requisition notice were unsatisfactory and as such the matters would be listed for a jurisdiction hearing in Townsville. This correspondence was also emailed to the respondent’s legal representatives at the Department of Resources.  On 2 November 2022 the parties were advised that a hearing to determine if the court had jurisdiction to hear the appeal was listed for hearing in Townsville on 28 November 2022.

1. At the scheduled hearing, Mr Kennedy who appeared on his own behalf and on behalf of the Estate requested an adjournment based on health difficulties that had arisen over the preceding days and also to permit him to seek legal representation. The adjournment was not opposed by the respondent and was granted on the basis sought.

1. On 5 December 2022 Mr Rosario Vecchio, solicitor forwarded a Form 21 Notice of Representation to the registry advising that he was representing Mr Kennedy and the Estate.  On 14 December 2022 directions were made with the consent of the parties re-listing the hearing for 2 March 2023. On 27 February 2023 at the request of the parties the Court ordered that the matters be heard on the papers and that the formal hearing date of 2 March 2023 be vacated.

Legislation

1. Section 164 of the LVA provides -

Action by Land Court registrar

(1)This section applies if the Land Court registrar considers a valuation appeal notice is defective.

(2)If the defect is that the valuation appeal notice does not satisfy the valuation appeal requirements, the Land Court registrar must give the person who filed the notice a notice stating the way in which the valuation appeal notice does not satisfy the valuation appeal requirements.

Example of reasons—

·because no objection decision has been made

·because of a circumstance mentioned in section 157 (2) or (3)

(3)The Land Court registrar must give the appellant a requisition

that—

(a)   states the defect; and

(b)   requires the appellant to fix it; and

(c)   states that the appellant must fix it by filing an answer to

the requisition within 28 days after the requisition is given.

(4)If the valuation appeal notice was filed after the appeal period ended, the requisition must be given with the notice by the Land Court registrar under section 158(3).

(5)Subject to section 165, if the Land Court registrar considers an answer fixes the defect, the answer is—

(a)    to be read as one with the valuation appeal notice; and

(b)   taken to be filed with, and to have been part of, the valuation appeal notice when it was filed

(6)If the Land Court registrar is not satisfied the answer fixes the defect , the Land Court can not hear or decide the appeal unless it is satisfied

(c)   The requisition need not have been given; or

(d)   The answer did fix the defect

(7)The Land Court registrar must give the valuer-general a copy of any requisition, answer or notice under subsection (2).

1. Section 165 of the LVA provides:

Action by Land Court

(1)This section applies if, on the hearing of a valuation appeal,  the Land Court considers a valuation appeal notice is defective.

(2)Subsection (1) applies—

(a)   if no requisition was given for the notice or a requisition   given is incorrect or incomplete; and

(b)  even though the Land Court registrar was satisfied an answer to a requisition for the notice fixed the defect stated in the requisition.

(3)The Land Court must require the appellant to fix the defect within 7 days.

(4)If the appellant complies with the requirement, the Land Court must make an order the court considers appropriate about the adjournment or the continuation of the hearing.

(5)If the appellant does not comply with the requirement, the Land Court may strike out the appeal or make any order the Court considers appropriate.

The applicants’ case

1. The applicants’ case comprises of an affidavit of the legal representative, Mr Rosario Francesco Vecchio. The affidavit, filed on 9 February 2023 provides a chronology of events and lists documents and correspondence between the parties and the Court. In the absence of any objection, the affidavit is admitted and marked as Exhibit 1.

The respondent’s case

1. No evidence was relied upon by the respondent.

Issues to be determined

1. Whether the letter issued by the registry on 30 August 2022 is a valid requestion notice as required by s 164 of the LVA.

The applicants’ submissions

1. The primary contention on behalf the applicants is that the requisition forwarded to the applicants on 30 August 2022 did not comply with the mandatory requirements of s 164 of the LVA, because it did not:

(a)     state the way in which the valuation appeal notice does not satisfy the appeal requirements.

(b)     state the defect and require the appellant to fix it.

(c)     state the appellant must fix it by filing an answer to the requisition within 28 days are the requisition was given.

1. A related contention on behalf of the applicants is that, given the items omitted from the requisition were mandated for inclusion by the legislation, the purported requisition is incomplete or incorrect and therefore invalid; a consequence of which is that s 164(6) is not engaged, and Court can hear and decide the matters.

The respondent’s submissions

1. The respondent’s submissions reject the contentions set out at [10](a) and (b), but do not take issue with the contention that the requisition is invalid as result of a failure to state the timeframe required by s 164(3)(c) of the LVA.

Consideration and conclusion

1. Although the parties are largely in agreement over how the issues should be resolved, a finding by the Court is nevertheless required.

1. The purported requisition notice was issued by the registry on 30 August 2022 and is annexed to Exhibit 1. Although the document outlined how the appeal documents might be rectified and offered procedural assistance to the appellants, it is not in dispute that a statement “that the appellant must fix it by filing an answer to the requisition within 28 days after the requisition is given” has not been included.

1. Clearly, the mandatory requirements of s 164(3) of the LVA and the likelihood that non-compliance with a requisition would deprive the Court of jurisdiction are critical factors when determining the validity of a document of this nature. These aspects have been considered in light of Mr Kennedy’s initial difficulties as an 82-year-old self-represented litigant.

1. Based on the evidence and materials relied on by the parties, and in the absence of any contention that the purpose of the LVA would require some other outcome, the Court has concluded that the requisition issued on 30 August 2022 pursuant to s 164 of the LVA is invalid.

1. For completeness, it should be recorded that the Court does not propose to make any order pursuant to s 165 of the LVA as contended for. If there are any outstanding defects to be addressed (if any), these may be addressed by the Registrar pursuant to s 164 of the LVA or by the Court pursuant to s 165 of the LVA if required when the appeals are heard.

Orders

It is declared that the requisition notice issued to the applicants on 30 August 2022 is invalid. 1.     

The Court has jurisdiction to hear and determine each of the appeals.2.